Are College Football Players Employees? The NLRB General Counsel Thinks So!

Readers of this blog likely know the first reference. But, how about the second? Give yourself a hand if you said “Richard F. Griffin, Jr., General Counsel (GC) of the National Labor Relations Board.” GC Griffin, a holdover from the Obama administration, decided last week that the new Trump administration was not going to have all the fun in Washington, D.C. What is it that GC Griffin did, you ask? Well, he decided that your favorite running back from Stanford, or that dynamic wide receiver from Northwestern, are employees under the National Labor Relations Act, entitled to full protection under the Act!

You may remember that in 2014, the NLRB’s Chicago office issued a decision that Northwestern football players were employees under the Act and therefore had the right to unionize. A secret ballot election took place but the ballots were impounded while the case was appealed to the full Board in Washington, D.C. Surprisingly, as we discussed in our blog post, “NLRB Rejects Union for College Football Players,” the union-friendly Obama Board, citing competitive balance and the potential impact on NCAA rules, determined that it would not effectuate the policies of the Act to assert jurisdiction over the Northwestern scholarship football players, and therefore declined to do so. The Board noted that approximately 125 colleges and universities participate in the Division I Football Bowl Subdivision, with all but 17 of the universities being outside of the Board’s jurisdiction because they are state-run institutions – and therefore not “employers” under the Act. The Board punted on the issue of whether the football players were, in fact, employees.

In a memo, GC Griffin concluded, based on the record developed in the 2014 case, as well as a recent Board decision finding graduate teaching assistants at Columbia University to be employees under the Act (we blogged about that in “The NLRB Changes Its Mind Again“), that the scholarship football players in Football Bowl Subdivision (FBS – formerly known as Division I) private sector colleges and universities are employees under the NLRA with the rights and protections of the Act.

GC Griffin focused on the fact that the football players perform services for their colleges in return for compensation (i.e., scholarships). The services are performed subject to the college/university’s control in that the schools control the manner and means of the players’ work on the field and in numerous facets of their daily lives to ensure compliance with NCAA rules. GC Griffin expansively concluded that the Board’s determination not to proceed in one (little) representation case would undermine Section 7 protections afforded to all unorganized private sector employees who may never elect to form or support a union.

So, what does this mean? Well, if the scholarship linebackers (but not those without scholarships) at Boston College think that their coach is running unsafe practices, they can speak out, and the school cannot kick them off the team for doing so (but they could kick off the non-scholarship players). The scholarship receivers (but not those without scholarships) at the University of Southern California could band together and work on reforming NCAA rules so scholarship football players (but not those without scholarships) can share in the massive profits generated by college football, and if their coach reprimanded or disciplined them for doing so, the NLRB will process an unfair labor practice charge filed by the scholarship players. (Apparently the non-scholarship players – those doing the same “work” under the same standards – are left out in the cold! I know, since they do not receive “compensation” for their “work,” maybe they should file wage payment claims under the FLSA!)

The GC’s Memorandum is obviously controversial. One GOP representative called on GC Griffin to either rescind the memo or quit. But, fear not Alabama Crimson Tide fans. Your university is a public institution so this ruling does not apply to your team. Coach Saban can continue to run roughshod over the rest of college football without NLRB interference!

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